Constitutional amendment rules are now a near universal feature of national constitutions, yet their function remains largely under-theorized. This chapter thus uses a comparative perspective to explore a number of different functions, as well as dangers, to formal procedures for constitutional amendment. It notes, for example, the historical role played by constitutional amendment procedures in Canada, India, South Africa and Australia in: (i) formalizing, or legalizing, major constitutional revisions or changes; (ii) allowing a polity to ‘update’ of various specific constitutional structures or procedure; and (iii) allowing legislatures to engage in more effective forms of ‘dialogue’ with courts, by both jump-starting new judicial interpretations of a constitution and trumping existing judicial interpretations. It also explores the dangers of overly flexible amendment, from the perspective of the role of constitutions in promoting valuable forms of political (pre-) commitment, settlement, and minority rights protection. In addition, the chapter concludes by providing a concise summary, and critique, of the existing empirical literature on the actual determinants of the difficulty of constitutional amendment, both cross-nationally as well as within the US.

05/30/2011

Robin L. West (Georgetown University Law Center) has posted A Response to Goodwin Liu (Yale Law Journal (The Pocket Part), Vol. 116, pp. 157-162, 2006; Georgetown Public Law Research Paper No. 11-43) on SSRN. Here is the abstract:

Professor Liu's article convincingly shows that the Fourteenth Amendment can be read, and has been read in the past, to confer a positive right on all citizens to a high-quality public education and to place a correlative duty on the legislative branches of both state and federal government to provide for that education. Specifically, the United States Congress has an obligation under the Fourteenth Amendment's Citizenship Clause, Liu argues, to ensure that the public education provided by states meets minimal standards so that citizens possess the competencies requisite to meaningful participation in civic life. Liu's argument is not simply that Congress may, within the grant of power of the Fourteenth Amendment, address educational inequality, if it sees fit to do so (thus withstanding federalism challenges). Rather, Liu's claim is that the states, and Congress, jointly must do so. The Constitution imposes a duty on government to educate, and confers a positive right to an education upon the citizenry. A decent education, Liu argues, is part of what it means to be a citizen under the United States Constitution.

I applaud the constitutional and the moral ambition of this piece. Liu's paper is a stellar example of what I hope will prove to be an emerging genre: an exploration of the possible meaning of constitutional phrases in our constitutional text and history, as viewed through the lens of legislative purposes and legislative ends. The article is a study of constitutional politics rather than constitutional law; it is a study of the effect of constitutionalism on legislative decision-making rather than the effect of constitutionalism on adjudicated constitutional law. I hope that this article proves fecund – that it inspires not only criticism but also like-minded efforts to improve other aspects of our public life through a capacious view of our representative branch's constitutional obligations. Liu's argument has two somewhat undeveloped implications that I believe are worth exploring, one jurisprudential and one practical.

In the United States, the constitutionalism-democracy debate has taken many forms, it has come in different waves: the first wave focused on whether present day majorities should be allowed to abandon the constitutional forms created by the founders, the second on the legitimacy of judicial review and on selecting among different theories of constitutional interpretation, and the third - which, as I will argue later, comes closer to the first wave of the debate - on the exclusivity or (non) exclusivity of the Constitution’s amendment rule. Although those engaged in each of these waves made important contributions to constitutional theory, there was something special about the first wave. Freed from the questions of interpretation and the never ending controversy over the legitimacy of judicial review of legislation, the protagonists of that debate were able to consider the relationship between constitutionalism and democracy in its raw form: Should popular majorities be allowed to alter the Constitution? This paper will argue that contemporary constitutional theorists have moved away from this question, considering it only in a weakened form. The paper invites those interested in democratic constitutionalism to re-visit the first wave of the debate with a new, fresher perspective, one in which the actual participation of citizens in constitutional change is a priority.

Most legal scholars and elected officials embrace the popular cliché that "the Constitution is not a suicide pact." Typically, those commentators extol the “Constitution of necessity,” the supposition that Government, essentially the Executive, may take any action - may abridge or deny any fundamental right - to alleviate a serious national security threat. The Constitution of necessity is wrong. This article explains that strict devotion to the "fundamental fairness" principles of the Constitution’s Due Process Clauses is America’s utmost legal and moral duty, surpassing all other considerations, even safety, security and survival.

Analysis begins with the most basic premises: the definition of morality and why nations must be moral. This article defends Deontology, the philosophy that because they are a priori, moral principles must be obeyed regardless of terrible outcomes. Such is the sacrifice demanded by morality. As most theorists and politicians favor some form of Consequentialism (the theory that the moral answer is the one that produces the most happiness), the defense of pure Deontology is thorough. Next, this work links Deontology directly with the American Revolution by demonstrating that, undeniable political influences and compromises notwithstanding, the Founders were deontologists who asserted in the Declaration of Independence that government is legitimate only if it governs according to eternal moral precepts. They pledged the new Nation’s “sacred honor” to uphold steadfastly the principles of moral government.

Aware of their imperfectness, the Founders instructed their successors to improve the moral philosophy underlying the Declaration. The deontology of Immanuel Kant expresses the best general paradigm of morality. Kant famously explained that all persons and societies share an overarching moral duty to respect the innate dignity of every human being no matter what sacrifice that may entail. Kantian ethics clarifies why moral abidance is more important than life itself. Because it is the superior moral theory that the Founders sought, Kant’s “dignity principle” must delimit the Constitution which, as explicated herein, is the legal iteration of the Declaration.

This article’s concluding discussion of the Constitution, particularly due process precedents, explains why the Kantian approach - sacrifice and honor - debunks theConstitution of necessity, proving that the Constitution is a suicide pact.

05/27/2011

Ruth Mason (University of Connecticut School of Law) has posted Federalism and the Taxing Power (California Law Review, Vol. 99, Forthcoming) on SSRN. Here is the abstract:

Scholars and courts recognize that the federal government uses its broad spending power to enlist states in achieving federal goals, thereby expanding the federal government’s reach beyond the areas enumerated for it in the Constitution. Previously underappreciated, however, is that the federal government can achieve similar ends - it can regulate the states and private parties - through its potentially equally broad taxing power. This Essay draws on the spending power literature to illuminate the analogous federalism concerns raised by expansive use of the taxing power. For example, by crowding out state regulation of similar policy areas, federal tax regulation may limit policy diversity and hinder regulatory competition both among the states and between the states and the federal government. But this Article also identifies important differences between taxation and grants that suggest that federal tax regulation represents less of a federalism threat than do conditional grants to the states. For example, because federal tax incentives neither contractually bind states to follow federal policy nor expend state legislative and administrative resources in enacting and enforcing federal policy, states may remain freer under tax incentives than grants to enact concurrent or contrary policies.